Usonik Farm Purchase Co-operative Society Ltd v Joan Abura & Lynette Dawa (as Administrators of The Estate of Isabella Akumu Abura (deceased) & 11 others
The bottom line
#Kenya's Court of Appeal paused an eviction order against a co-operative society, confirming that a single arguable ground plus real hardship can secure a stay pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Nature of the Court's jurisdiction under Rule 5(2)(b)
The jurisdiction is original, unfettered and discretionary, but must be exercised judiciously and with reason, to preserve the subject matter of an appeal.
The court restated that Rule 5(2)(b) is a procedural innovation designed to preserve the subject matter of an appeal where one has been filed or is intended. The discretion is wide but must be exercised judiciously, not on impulse or pity, and does not constitute an appeal from the trial judge's discretion.
Whether the intended appeal was arguable
The appeal was arguable: the grounds, including that the prayers in the main suit were the same as those granted at interlocutory stage, were not frivolous or idle.
The court examined eleven grounds in the memorandum of appeal, including misrepresentation, part payment of purchase price, misapplication of the Giella injunction principles, and denial of fair hearing. It held that an arguable point raises a serious question of law or a reasonable argument deserving consideration, without making final findings that could embarrass the main appeal.
Whether the appeal would be rendered nugatory if stay were denied
Yes. Eviction, demolition of structures and crops, and possible sale of the suit land to a third party would cause hardship out of proportion to any prejudice to the respondents.
The applicants were in occupation with structures and immature maize and sugarcane crops. Eviction and demolition would be irreversible, forcing reconstruction, destroying crops permanently, and the risk of transfer of the land to third parties would put it beyond the applicants' reach if the appeal succeeded. The conflicting claims of both sides were balanced.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory if stay is denied
- It is sufficient for arguability that a single bona fide arguable ground of appeal is raised; the appeal need not necessarily succeed
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party
Court orders
#- 1.Temporary orders of stay of execution of the ruling and order of Hon. Mr. Justice S.M. Kibunja delivered on 12th June 2019 in Kisumu Environment and Land Case No. 28 of 2014 directing the applicant to remove structures and vacate the parcel of land known as L.R. No. 6015/3 Nandi District within 90 days or be forcefully evicted, pending the hearing and determination of the intended appeal
- 2.Costs of the application to abide the outcome of the appeal
- On appeal from
- Environment & Land Court at Kisumu
- ELC Case No. 28 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Usonik Farm Purchase Co-operative Society Ltd v Joan Abura & Lynette Dawa (as Administrators of The Estate of Isabella Akumu Abura (deceased) & 11 others", Case Analysis (2019). Civil Application No. 86 of 2019 (UR. 58/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/158/eng@2019-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.